on writ of certiorari to the united states court of appeals for the eleventh circuit

[June 24, 2010]

Justice Breyer
, with whom
Justice Stevens
and
Justice Sotomayor
join, concurring in part and concurring in the judgment.

I join the Court’s well-reasoned opinion with the exception of Part IV–B. The Court neither purports to alter nor does alter our holding in
Panetti
v.
Quarterman
,
551 U. S. 930 (2007)
. See
ante,
at 14, n. 11. In
Panetti,
we “declined to interpret ‘second or successive’ as referring to all §2254 applications filed second or successively in time,
even when
the later filings address a state-court judgment
already challenged in a prior
§
2254 application.”
551 U. S. at 944 (emphasis added). In this case, by contrast, we determine how
28 U. S. C. §2244(b) applies to a habeas petition that is the
first
petition to address a
new
“state-court judgment” that has not “already [been] challenged in a prior §2254 application.” And, for the reasons provided by the Court, such a “first” petition is not “second or successive.” Of course, as the dissent correctly states, if Magwood were challenging an undisturbed state-court judgment for the second time, abuse-of-the-writ principles would apply, including
Panetti
’s holding that an “application” containing a “claim” that “the petitioner had no fair opportunity to raise” in his first habeas petition is not a “second or successive” application.
Post,
at 3 (opinion of
Kennedy
, J.). Contrary to the dissent’s assertion,
post,
at 6–8, the Court’s decision today and our decision in
Panetti
fit comfortably together.